Monday, March 25, 2013

This week is the week that the United States Supreme Court (SCOTUS) tackles the issue of same-sex marriage. The fight for legalizing same-sex marriage has been gaining traction in this country, and given the demographics of the support (e.g., a lot of it is based on age, as well as if you personally know someone who is gay), it should only be a matter before time that same-sex marriage is legal in all fifty states. I would prefer that the government stay out of people's marriages and stop defining what is an acceptable contract for consenting adults. The only time the government should intervene in a contract signed by consenting adults is if there are contract enforcement issues. Alas, we don't live with that libertarian ideal; we live in a world where the government is involved in defining marriage. Based on the two cases before the Supreme Court, there could very well be a shift in the definition of marriage...and it wouldn't be the first time there was a societal change in the definition of marriage.

As for how this will play out, I need to emphasize that I don't have a crystal ball or clairvoyance. These proceedings have a way of taking unexpected turns. For instance, no one expected that Justice Roberts was going to vote in favor of Obamacare. I am going to assume that these two cases won't be thrown out due to technicalities (in this case, the technicality being Article 3, §2 of the Constitution). I will also try to make educated guesses based on the actors involved. With that in mind, how will this all materialize?

The first case is Hollingsworth v. Perry, which is the case questioning whether Prop 8, a 2008 California state law that defines marriage between a man and a woman, is a violation of the Constitution's Equal Protection Clause under the 14th Amendment. Under Article 3 §2 of the Constitution, Hollingsworth might not even have legal standing for SCOTUS to hear the case. I am doubtful of a dismissal of the case on procedural grounds because this is such a hot-button issue where I am sure that SCOTUS wants to weigh in.

Assuming that the case is not thrown out, there are a few possible rulings. One is that SCOTUS upholds the current definition of marriage [between a man and a woman]. Another is that SCOTUS rules in favor of Perry, but limits the ruling in favor of same-sex marriages to the state of California. This ruling would make sense because Californians were previously afforded rights, but said rights were revoked. The third option is the "eight state" ruling. I found this option to be legally creative (read: deft). This ruling would affect the eight states that allow for civil unions, but prohibit gay marriage (i.e., California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island). In these eight states, they treat same-sex marriage couples in all ways but one, i.e., the "separate but equal" bit. This ruling would make it so that civil unions were no longer legally viable because they violate the Fourteenth Amendment. Finally, there is the possibility of the "fifty state" holding, which would allow for same-sex marriage to be legal in all fifty states. There could be the argument that under Romero v. Evans, the discrimination against gay people cannot even satisfy rational basis review. There can even be the argument under Loving v. Virginia that the Due Process Clause allows for one to marry the partner of their choice.

The second case is that of United States v. Windsor. This case will primarily question whether Section III of the Defense of Marriage Act (DOMA) violates the Fifth Amendment in terms of equal protection of same-sex couples whose marriages are already rendered legal on the state level, a.k.a., does a federal definition of marriage defile the notion of federalism? The standing question in this case is a bit more convoluted because the question is whether the House of Representatives has standing to defend DOMA in court. If SCOTUS rules that they don't, SCOTUS can either choose not to hear the case or choose that Windsor still has legal standing, which means the case would proceed. If the House does have standing, SCOTUS proceeds. Assuming the case proceeds, SCOTUS will have to decide whether Section 3 of DOMA violates the notion of equal protection. If it does not, the status quo stays intact, thereby making it more difficult to legally question the definition of marriage in the future. If DOMA is unconstitutional, that means one has to defer to the state's definition of who is married, which would mean at least for those same-sex couples living in states where same-sex marriage is legal, it would mean same-sex couples are granted 1,138 rights, benefits, and provisions previously unavailable to same-sex couples.

It would be wonderful if same-sex marriage were legal in all fifty states because it would certainly be a step in the right direction when it came to due process and contract rights. However, what I would like to happen is not the same thing as what I think will happen. When it comes to civil rights issues, SCOTUS historically likes to be ahead of the curve, but not too far ahead of the curve, which is why I think that same-sex marriage throughout the country is unlikely to happen with these court rulings. It is difficult to guess how all the justices will vote. I assume that Scalia, Thomas, and Alito will vote to uphold DOMA and Prop 8, whereas Sotomayor, Ginsburg, Kagan, and Breyer will vote to repeal DOMA and Prop 8. I figure those justices will vote based on ideological lines, as they typically do. The two justices where I am unsure are Kennedy and Roberts. As we saw in the Obamacare case, Roberts sided with Obamacare in a 5-4 ruling in a failed attempt to limit the government's power. Justice Roberts can very well vote against DOMA and/or Prop 8, but do so in a very limiting manner. Looking at Roberts' voting record, though, one sees that he is one to affirm federal power, which he might do with Congress and DOMA. Kennedy might have made a limited ruling in Romero v. Evans, but based on his ruling in Lawrence v. Texas, I am going to guess that Kennedy wants to be on the right side of history and vote down Prop 8 and DOMA. Justice Kennedy is a proponent of gay rights, but given that Justice Kennedy has a comparable affinity towards states' rights, which is why the Prop 8 case is going to be more complex for Kennedy than the DOMA case. I would guess that there will be 5-4 rulings, but the Court could very well rule 6-3 in favor of civil rights, but again, time will tell.

I would posit that DOMA is repealed, not only because lower courts have already ruled it unconstitutional, but one of the judges who ruled it unconstitutional was Justice Dennis Jacobs, who is a very conservative judge well-known in the world of the Federalist Society. DOMA is an overreach of Congress' enumerated powers, and is thus unconstitutional based on federalist grounds. Even if DOMA is repealed, that would not mean same-sex marriage for all fifty states. What would happen is that there would no longer be a federal definition of marriage, which means that defining marriage would be relegated to the states. As previously mentioned, the plus for progress for gay rights is that the states that have legalized same-sex marriage would provide the same benefits to same-sex couples that are already provided to other couples.

The Prop 8 case is more interesting just because there are more options that SCOTUS can consider. Cultural shifts lead to legal shifts; that is the way the history of civil rights has operated. Momentum for gay rights has certainly picked in the past few years, and changes previously thought unimaginable (e.g., passing same-sex marriage at the ballot box) have been actualized. If the federalist/"leave it to the states" argument is what brings the more conservative members of the Court, such as Justice Thomas, on board, then I would postulate that the ruling will be limited in nature. Since the lower courts (i.e., the 9th Court of Appeals, federal appellate court) limited their rulings to the state of California, I would guess that SCOTUS will also follow suit on that precedent set. Plus, a more moderate and gradual change will make the issue less divisive over time.

In summation, my concise prediction of what is most likely to occur is the following: repeal of DOMA and repeal of Prop 8 in which the scope of the ruling will be limited to the state of California.

Monday, March 11, 2013

Wealth inequality: another example of a politically charged phrase. The disparity between the poor and the rich is hardly a new source of contention. It's that economic hard times make the gap between the rich and the poor more pronounced and more noticeable. It is understandable to sympathize with the poor person who is scraping by just to make ends meet while showing disdain for the CEO who "makes bank." A YouTube video (see below), entitled "Wealth Inequality in America," has gone viral, and is one of the latest examples of invoking the previously mentioned sentiment. This video outlines how the actual wealth distribution is so different from what we perceive to be or what we would ideally want it to be. Is it fair that the 1% has so much money while the average American works so hard to sustain a living? Is wealth inequality as terrifying as portrayed in this YouTube video, or is it merely the perceptions created by the wealth inequality? Is there something we should do to make the wealth distribution more equitable, and if so, what should that something be?

In the past, I have discussed the merits of the income inequality argument and how it is not as big of a deal as people were purporting. Wealth inequality is just a variant of the same discussion and same points. Nevertheless, I do want to go over points that the video makes and see what holds up and what does not.

First, the framing of the issue as "wealth inequality" is problematic. People being wealthy isn't the issue; poverty and social dysfunction are the issues here. Wealth is not just a sign that rich people are doing well. Since we don't live in a zero-sum world, everyone derives benefit from the success of wealthy people. Yes, Bill Gates is rich, but that is because he made such strides in the computer industry, and in the process, many individuals have computers. There are numerous examples of this phenomenon, but it's safe to say that the wealthy are not getting wealthy because they're exploiting the "working class"; it's because they create a product that consumers desire. Also, let's consider that the wealthy did not get wealthy at the expense of the poor, which can be observed by the fact that income in real terms has increased since 1979.

Second, this video is a static snapshot measuring people in economic quintiles, not as individuals. Mark Perry makes a good point here: "Sports statistics are kept in a much more rational way than statistics about political issues. Have you ever seen statistics on what percentage of the home runs over the years have been hit by batters hitting in the .320s versus batters hitting in the .280s or the .340s? Not very likely. Such statistics would make no sense because different batters are in these brackets from one year to the next. You wouldn't be comparing people, you would be comparing abstractions and mistaking those abstractions for people." This point cannot be stressed enough because the creator of the YouTube video implies that zero income mobility exists, which is patently false (see video below). Fortunately, much of this inequality is attributable to long-term demographic factors, such as marital status, age, and level of education.

The YouTube video "Wealth Inequality in America" presents the country's wealth in terms of proportions. Not only does this video not state the average wealth [or income] by quintile, but the video does not even bother to bring up the point of the quality of consumption. In pre-capitalist times, abject poverty was an inevitability for "the 99%." The ability of the everyday person to have access to an unprecedented, absolute standard of living that exceeds that of what people like Queen Elizabeth I or Andrew Carnegie had. Although we might take things like the microwave, dishwasher, television, computer, or cell phone for granted, these conveniences make our lives much more luxurious and comfortable than we realize.

Watching the YouTube video "Wealth Inequality in America" might invoke you to want to have a more redistributive wealth system. But how about we go after the collusion between Big Government and Big Business that provide the rich with the exemptions that exacerbate the wealth inequality? How about going after "zero-sum" policies like minimum wage, unemployment benefits, or Social Security that make it more difficult for the poor to escape the poverty trap? Instead of demonizing wealth, how about we ask ourselves what can be done to help the poor without sticking it to the rich?

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